Vol. 12   No. 50

Parshas Shoftim

"Do not twist the judgement and do not favor one side over and above the other" (16:19).

R. Yitzchak Yerucham Diskin, who was involved in the timber business of his father-in-law, once had a Din Torah with a fellow merchant, who suggested that they accept Maharil Diskin, R. Yitzchak Yerucham's father, to arbitrate between them, a perfectly acceptable situation provided both parties agree, as we have learned in Sanhedrin.

So the two litigants turned to the Ga'on. But the Maharil Diskin refused to take on the case. "Even if the Shulchan Aruch specifically states 'Chayav' ", he explained, "someone who is prejudiced will inevitably read 'Patur' ".

This is borne out by the story of the Shach who, whilst traveling, was once involved in a Din Torah. He presented his case before the Rav, and it is safe to presume that there was nobody who could present his case more convincingly than the great Shach. Imagine his surprise therefore, when the Rav informed him that a new commentary on Choshen Mishpat that had only recently appeared in print totally refuted his argument. The Shach asked to see it and, the Rav promptly produced a Choshen Mishpat and showed him what the new commentary said on the matter.

The new commentary was none other than 'the Shach', who had to admit, that what he had just claimed in Beis-Din on his own behalf clashed with what he had himself written in his commentary. The difference being, of course, that when he wrote his commentary on Shulchan Aruch, he had not been biased.

In the year 5665 a serious dispute broke out between the tenants of the various organizations set up by Baron Rothchild and the Baron himself, regarding the rights of the latter on the lands on which the organizations stood.

A Beis-Din of three Dayanim was chosen to arbitrate between the two sides, one of whom was R. Yosef Chayim Sonenfeld. When the dispute was finally settled, Baron Rothchild gave each of the Dayanim fifty golden napoleons. R. Yosef Chayim, despite the vast amount of time and effort that he had put into the case, immediately returned the money to the Baron. He had decided at the outset, he explained, not to accept any money for his services, because he felt, the mere fact that a Dayan received money for his services, even when it is permitted (as it was in his case) detracted from the absolute objectivity that is required of a Dayan when he is involved in a Din Torah.

At a stormy protest meeting against the formation of the office of the Chief Rabbi under the authority of the Histadrus ha'Tziyonis, the dominant voice was that of R. Yosef Chayim, who clearly pointed out the disadvantages of a Chief Rabbi who operated under the jurisdiction of a secular body.

To prove his point, he cited the Gemara in Sotah (12b), which, commenting on the Pasuk in Sh'mos, where Miriam asked Bisyah (Paroh's daughter) whether she should call a wet-nurse from among the Jewish women, describes how although Bisyah had tried to induce little Moshe to feed from various Egyptian women, he had refused. Now the Halachah specifically permits feeding a Jewish baby from a gentile wet-nurse, only, as Chazal have taught, Moshe refused because it was not befitting for the mouth which would one day speak with the Shechinah to feed from a non-Jewish breast. Such a mouth must be sanctified and guarded from impurity from the day that it is born.

No less the judges of Yisrael, about whom it is written "G-d stands in the Community of judges" (Tehilim 82:1). As Chazal have said, a judge who judges accurately becomes a partner with Hashem, and as the Gemara says in B'rachos (6a) 'When three people sit and judge, the Shechinah is with them'. How can such people, who constantly have need of Divine assistance, feed from a source of impurity, from people who deny the existence of G-d? Surely, he postulated, a link of this nature between the Dayanim and the secular leaders, who aim to uproot all that we received at Sinai, threatens the very existence of the Beis-Din, which by virtue of its inherent role, must act independently from the state!

Unfortunately (but inevitably), R. Yosef Chayim's fears have been proved to be correct. Over and over again, we witness the Beis-Din's inability to enforce Torah law in matters that concern the state. Over and over again, we see the secular leaders negate the rulings of the Beis-Din, whenever it suits them to do so.

"Tzedek tzedek tirdof (Be sure to pursue righteousness)" (16:20).

R. Bunim from P'shischa translates the Pasuk as 'Pursue righteousness with righteousness". Even when one is searching for the truth, one should take care to do so using legitimate means, and not emulate the example of the gentiles, who go by the principle that 'The end justifies the means'.

"Do not stray from whatever they tell you right or left" (17:11) ...

... 'Even if they say to you that right is left and left is right', comments Rashi, 'and certainly when they tell you that right is right and left is left'.

The Ramban explains that what Rashi really means to say is that even if seems to you that the Chachamim are calling right 'left', and left 'right', you are obligated to listen to them and to follow their instructions. Because the truth of the matter is that the Chachamim, who are imbued with Da'as Torah, know what is right and what is left, and if you think that they have got it wrong, then it is you, who has erred, and not them.

The story is told of the parade of young recruits, whose parents had been invited to attend. All the soldiers were marching 'Right left, right left!', all, that is, except for one soldier, who was marching left right, left right.

And one mother, face beaming, was heard to declare 'Look, they're all out of step, except for my Moshele! He's the only one who has it right.'

Such is the power of bias!

A biased person sees, not the reality, but what he wants to see. The Chachamim see the Emes in its totality, for they perceive things from an unprejudiced vantage point. Without Torah, a person is perpetually biased, and he sees things, not necessarily as they are, but as he would like to see them.

"You shall appoint over you a king ... you are not allowed to appoint over yourselves a foreigner ('Ish Nochri'), who is not your brother" (17:15).

One of Yosef Chayim's grandsons once gave him tremendous pleasure when he pointed out that the numerical value of "Nochri" is equivalent to that of 'Hurdus' (Herod), a slave of the family of the Chashmona'im (the family of Kohanim Gedolim), who usurped the throne from the tribe of Yehudah.

Amazingly, the Ba'al ha'Turim completes the picture when he comments that the numerical value of "mi'kerev achecho" (from among your brothers) is equivalent to that of "mi'sheivet Yehudah" (from the tribe of Yehudah), implying 'and not from the tribe of Levi, and certainly not from a slave who has been set free'.

" ... so that his heart should not become proud" (27:20).

A king is obligated to ensure that his Kavod is upheld. Indeed, Shaul ha'Melech was severely reprimanded for ignoring the taunts and insults of a group of people immediately after his coronation. That is why the Torah inserts the word "his heart" here, to teach us that it is only outwardly that he must be aloof. In his heart he must remain as humble as everybody else.

If a king is obliged to be humble in spirit, then how much more so ordinary people like ourselves.

A certain Sefardi commentary once wrote that being humble is confined to personal Kavod. But when Kavod Shamayim (G-d's honour) is at stake, then we must uphold it with every fibre of our being, as the Pasuk writes in Divrei Hayamim 2 (17:6) "And he raised his heart in the ways of G-d".

"And you shall do to them what they planned to do to their brother" (19:19).

"Like they planned to do", says Rashi, but not like they actually did. From here Chazal derive that if the defendant was actually put to death, the witnesses are not killed.

Surely, one would assume, if the witnesses are put to death when they did not succeed in having the defendant put to death, then how much more so when they did?

The Ramban answers by citing the Pasuk in Tehilim (82:1) "Hashem stands in the community of G-d" (with reference to the Beis-Din). In other words, when the Beis-Din convene, they are joined by the Shechinah itself, which guides them in their judgement, to ensure that they do not err. Consequently, if the second set of witnesses testify before the defendant has been put to death, it is a sign that the latter is innocent, and that Hashem orchestrated the arrival of the second witnesses in time to save him (rendering the first witnesses Eidim Zomemin). Whereas if they arrive only after the death-penalty has been carried out, it proves that the first witnesses were telling the truth and that the defendant really was guilty.

The Dubner Magid explains it differently, and as usual, he does it with a Mashal ...

Reuven took Shimon to a Din Torah for having slapped his face unprovoked. When the Dayan ruled that Reuven should slap Shimon's face in return, Reuven objected on the grounds that it was not just. 'Shimon slapped me for no reason', he argued; 'whereas if I now slap him, I will be doing so because he slapped me, in which case the punishment does not fit the crime'. (The above ruling has of course, no basis in Halachah. Nevertheless, based on Reuven's argument, one would assume that he would have been happy to comply had he been ordered to slap Shimon's face twice).

Likewise here, says the Dubner Magid. The Eidim Zomemin planned to have an innocent man put to death. When Beis-Din foil their plan, and put them to death instead, the punishment fits the crime, inasmuch as they too, are being sentenced to death, although they are innocent of having done anything that warrants the death penalty. This will not be the case however, if their testimony succeeded in having the defendant put to death, because whereas they caused an innocent man to die, they themselves are not innocent at all. Consequently, this would not fit the Torah's requirement of "Ka'asher zomam lala'sos le'ochiv (like he planned to do to his brother)". Nor, one may add, will they receive the death-penalty for having caused an innocent man to be killed, since one is only chayav miysah for actually killing somebody, not for indirectly causing his death.

Ibid.

According to the Tzedokim, says the Mishnah in Makos, the witnesses are only put to death if they succeed in having the defendant killed, because the Torah writes "A soul for a soul". To which the Chachamim retorted 'The Torah writes here "And you shall do to him like he planned to do to his brother", implying that his brother is still alive'.

The Ritvo infers from this Mishnah that a brother is only called a brother as long as he is alive, but not after he has died. And he queries this from a number of Pesukim where the Torah itself refers to a brother as 'a brother' after his death (see for example, Ki Seitzei 25:6, where the Pasuk writes [in connection with a Yavam] "to arise on the name of his deceased brother").

That is indeed the case, answers the Rashash. But, he adds, it only applies to a biological brother, son of the same father or the same mother. But our Pasuk is talking about any fellow-Jew, who is referred to as a brother only because he is obligated to keep Mitzvos just like I am. Once he dies however, he is 'exempt from the Mitzvos', in which case the brotherly relationship comes to an end, just as the Mishnah in Makos implies.

It is a Mitzvah to appoint judges and law-officers to ensure that the people adhere to the Mitzvos of the Torah, and to bring back those who have strayed (even against their will if necessary). It is their job to teach the people what is right and to prevent the law from being broken. They must also enact decrees on the transgressors, so that keeping Mitzvos and abstaining from sins is not left entirely to the whim of each individual. One of the conditions of the Mitzvah is that these judges should be people who are on the highest level, and it entails appointing from each and every sizeable town twenty-three Dayanim, who convene regularly at one of the gates of the city. This is known as a Sanhedrin Ketanah. In addition, it is a mitzvah to appoint a Beis-Din Gadol (the Sanhedrin Gedolah) of seventy Dayanim, plus one head, the Rosh Yeshivah, as it were, whom Chazal refer to as 'Nasi' (the president). They too, convene regularly in the location that is designated for them (in the Beis Hamikdash, in the Lishkas ha'Gazis). A small community, that is too small to accommodate even a Sanhedrin Ketanah, has to set up a Beis-Din consisting of three judges. These judges rule on relatively small matters, whereas more difficult issues are taken to the nearest Sanhedrin Ketanah.

And in the same way they must appoint law-officers who patrol the market-places and streets, whose job it is to check on the business dealings that take place (such as weights and measures) to ensure that they are conducted in an honest manner, devoid of even minimal cheating. And we learn this from the Pasuk in Shoftim (15:18) "Judges and law-officers you shall appoint in all your gates". The Sifri derives from "Shoftim ve'Shotrim" that one must appoint a Beis-Din over all Yisrael, and from "Titen lecho" that the Beis-Din must have a Nasi; it learns that each tribe must have its own Beis-Din from "be'chol she'orecho" (Raban Shimon ben Gamliel derives this from "li'shevotecho ve'shoftu"), and that they may judge the litigants against their will from "ve''shoftu es ho'om". This Mitzvah is repeated in Beha'aloscho (11:16), where Hashem said to Moshe "Gather for Me seventy elders", and Chazal have taught that wherever the Torah uses the word "li" (for Me), it has connotations of permanence, like we find in Tetzaveh (in connection with the appointment of Aharon and his sons) "ve'chihanu li" (and they shall be Kohanim to Me). Consequently, although the Pasuk is written in a temporary context, the Mitzvah is forever.

The reason for the Mitzvah is obvious, for it upholds our religion, seeing as the people are afraid of the kings and the judges, and now that they get used to doing what is good and right out of fear, it will become natural for them to do so, and in the end, they come to perform what is just and right out of love, once they perceive that this is the truth. Because just as a person's nature creates a tendency to act in a certain way, so too, does force of habit (as Chazal have said 'Habit, turns into second nature'). And when the people go on the path of righteousness and faith, and choose what is good, then in return, good embraces them, and Hashem rejoices in his creations.

Some of the Dinim of the Mitzvah ... Chazal have said that the most senior of the seventy Dayanim, who is called the Av Beis-Din, sits below the Nasi, and the remaining Dayanim sit close to him, in order of age of seniority. This means that whoever is greater than his colleagues sits closer to him, and whenever two or more are equal, then the older Dayan takes precedence. The Dayanim sit in a semi-circle, so that they can all see each other. Two Botei-Din, each consisting of twenty-three Dayanim, sit in front of the Sanhedrin Gedola, one by the entrance to the Azarah, the other by the entrance to the Har ha'Bayis. The most outstanding Talmid-Chacham in each of these Botei-Din was appointed head of his particular Beis-Din.

One does not allow a Dayan to sit on either the Sanhedrin Gedolah or the Sanhedrin Ketanah unless he is wise and understanding in the Chochmas ha'Torah. In addition, he has to be knowledgeable in worldly matters, in things such as medicine, mathematics, the seasons, the Mazolos (astronomy) astrology and the basics of various types of magic (such as reading omens, divining and sorcery), so as to be able to judge anyone who is brought before Beis-Din on these charges ... One may only appoint on the Sanhedrin Kohanim, Levi'im and Yisre'elim of pure stock (i.e. whose daughters are eligible to marry a Kohen), for so the Torah writes in Beha'aloscha (11:18) in connection with Moshe "and they (the Sanhedrin) shall stand there with you", on which Chazal comment 'similar to you' ... In addition, one may only appoint, both on the Sanhedrin Gedolah and on the Sanhedrin Ketanah, judges who have Semichah. Indeed Moshe himself gave Semichah to Yehoshua, as the Torah writes in Pinchas (27:23) "And he placed his hands on him", and to the seventy elders whom he gathered to assist him. And those elders gave Semichah to others, and so on, creating a chain of Semichah until it ceased temporarily in the time of the Amora'im. Semichah throughout the generations was not performed with the hands as it was in the generation of Moshe. Only they would examine the person whom they wished to ordain, if he was conversant in his knowledge of Torah, his intelligence was sound, and he was a man who sought the truth and detested injustice in all its forms, then, after much investigation regarding his personal integrity and his wisdom, three Semuchim (or even if one of them was a Samuch) declared 'You now have Semichah'. From that time on he would bear the title 'Rebbi', and he had the authority to rule even in matters concerning the issuing of fines ... (cont.)